[2021] KEBPRT 422 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 529 OF 2019

(NAIROBI)

BACK 2 BACK MEDIA TEC

INSTITUTE LIMITED……………………………………….……TENANT/APPLICANT

VERSUS

BHARAT ANANTUKAR PATEL....……..….…………LANDLORD/1ST RESPONDENT

RAJESH ANANTKUMAR PATEL………………...….LANDLORD/2ND RESPONDENT

RULING

The Tenant’s application dated 26th April 2021 seeks the following orders;

1. That this honourable court do issue orders to evict the Tenant herein Ms Back 2 Back Media Tec Institute Ltd from the suit premises situated on Ambar House, 2nd Floor, Baricho Road on LR No 27/128.

2. That the Landlord be granted orders to forthwith enter and repossess the suit premises with the assistance of the OCS Industrial Area Police Station and the Landlord’s preferred Auctioneer to ensure compliance with this order.

3. Costs.

The grounds upon which the application is grounded may be summarized as follows;

1. That the Tenant has not been paying rent.

2. That the Tribunal has issued orders in favour of the Landlord to distress for rent in the sum of Kshs 2,542,600/- which rent remains unpaid.

3. That the Tenant does not have attachable items to recover the outstanding rent.

4. That the Tenant may not be able to pay the rent which continues to accumulate.

5. That the Landlord has a Tenant who wishes to occupy the demised premises and pay rent.

The application is supported by the affidavit of the 1st Respondent which in summary is as follows:

1. That the Applicant has been irregular in payment of the monthly rent accumulating the arrears to Kshs 1,77,000/- as at 15th February 2019.

2. That the total rent outstanding to date is Kshs 7,216,600.

3. That on10th March 2021, the Landlord herein obtained orders to recover rent arrears in the sum of Kshs 2,542,600/-.

4. That the Tenant has no attachable items that would satisfy the accumulated rent.

5. That the accumulation of rent is causing the Landlord/Applicant financial constraints.

6. That the Applicant has a Tenant who is ready occupy the premises and pay rent.

I have gone through the record and do note that this matter is indeed part heard, the same having been last heard on 18th September 2019. The Tenant/Applicant has not taken any further steps in the prosecution of his reference.

Indeed, the Tenant has not participated any further in these proceedings. The Landlord’s application dated 8th February 2021 proceeded without the participation of the Tenant who had been served with the same. The current application has also proceeded without any participation on the part of the Tenant who has been served with the same.

In the hearing of 10th March 2021, this matter was ordered to be fixed for hearing on a priority basis. The Tenant yet again, has not taken any steps to fix the same for hearing. From the foregoing, it would appear that the Tenant has kind of lost interest in these proceedings

The orders sought by the Applicant in this application are orders of eviction and vacant possession. The only issue that is for consideration and therefore determination is whether the Applicant has made a case for the grant of the orders sought.

The Applicant in this application has indicated that the rent arrears as at 10th December 2018 was Kshs 1,266,000. The Tenant’s goods were as a consequence thereof proclaimed. The rent arrears as at 16th February 2019 amounted to Kshs 1,777,000/- even after the distress, rent arrears were not paid. That upon receiving orders to distress for rent in the sum of Kshs 2,542,600/- on 10th March 2021, the Landlord/Applicant instructed Twinstar Auctioneers to carry out an investigation on the Tenant.

At paragraph 3 of the Auctioneer’s letter (Exhibit BW 2) addressed to counsel for the Landlord, the Auctioneer indicated the following to be the available goods in the demised premises for purposes of levying distress;

1. One reception desk.

2. One secretarial chair.

3. Onc computer and printer

4. Four chairs.

It is clear from the goods list available at the demised premises that the sale of the same cannot match the outstanding rent arrears of Kshs 2,542,600/- found to have been due by the orders issued on 10th March 2021.

I therefore agree with the Landlord’s averment at paragraph 11 of the affidavit in support of his application where he states that the Tenant has no attachable goods that would enable the Landlord to recover the rent due.

The Landlord’s further indicated though I have not seen any evidence, that they have found a Tenant for the premises who is willing to pay rent. In the absence of any evidence to the contrary, I am prepared to take it as a fact that indeed the Landlords have found a Tenant for the demised premises.

Is this a proper case to issue the orders sought by the Applicant? In answering this question, I do observe that the Landlord’s application is unopposed. The Tenant was served but has not filed any responses to the Landlord’s application.

The Tenant’s notice of motion is expressed to be brought under section 12(4) of Cap 301 which provides as follows;

“In addition to any other powers specifically conferred on it by or under this Act, the Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or the Tenant and may make such orders thereon as it deems fit.” (underlining mine).

Under section 12(e) of Cap 301, the Tribunal shall have powers;

“To make orders upon such terms and conditions as it thinks fit for the recovery of possessionand for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a Tenant, being at any material time in occupation of the premises comprised in a controlled tenancy.”

The application has been properly brought under the provisions of section 12 of Cap 301. The Landlord clearly stands to suffer great injustice if the Tenant is allowed to continue in occupation of the demised premises without paying the current rent and the accrued arrears.

The Landlord is entitled to a financial return on the investment and this he cannot get from the Respondent herein.

I am satisfied that the orders sought by the Landlord can be granted under section 12(e) and 12(4) of Cap 301. In the circumstances, I do grant the Landlord’s application in terms of prayers 2 and 3.

The Tenant is to vacate the demised premises within thirty (30) days from the date of this ruling failing which the Landlord will be at liberty to enforce prayer No 2 of his application.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Dated and delivered in open court this 21stday of Mayby Hon Cyprian Mugambi Nguthariin the presence ofMiss Chelangatfor theLandlord/Applicantand in the absence of theTenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL